11 U.S. (7 Cranch) 603, 3 L.Ed. 453 (1813)
Argued: Decided: February 27, 1812
The Court having taken time since last term to consider this
case, [11 U.S. 603, 618]
STORY, J. delivered their opinion as
follows, (MARSHALL Ch. J. and TODD J. being absent.)
The first question is, whether lord
Fairfax was proprietor of, and seized of the soil of the waste and
unappropriated lands in the Northern Neck, by virtue of the royal grants, 2
Charles, 2 and 4 James 2, or whether he had mere seignoral
rights therein as lord paramount, disconnected from all interest in the land,
except of sale or alienation.
The royal charter expressly conveys
all that entire tract, territory, and parcel of land, situate, &c. together
with the rivers, islands, woods, timber, &c. mines, quarries of stone and
coal, &c. to the grantees and their heirs and assigns, to their only use
and behoof, and to no other use, intent or purpose
whatsoever.
It is difficult to conceive terms more
explicit than these to vest a title and interest in the soil itself. The land
is given, and the exclusive use thereof, and if the union of the title and the
exclusive use do not constitute the dominium directum
& utile, the complete and absolute dominion in property, it will not be
easy to fix any which shall constitute such dominion.
The ground of the objection would seem
to have been, that the royal charter had declared that the grantees should hold
of the king as tenants in capite, and that it
proceeded to declare that the grantees and their heirs and assigns should have
power 'freely and without molestation of the king, to give, grant, or by any
ways or means sell or alien all and singular the granted premises, and every
part and parcel thereof, to any person or persons being willing to contract for
and buy the same,' which words were to be considered as restrictive or
explanatory of the preceding words of the charter, and as confining the rights
granted to the mere authority to sell or alien.
But it is very clear that this clause
imposes no restriction or explanation of the general terms of the grant. As the
grantees held as tenants in capite of the king, they
could not sell or alien without the royal license, and if they did, it was in
ancient strictness an [11 U.S. 603, 619] absolute
forfeiture of the land. 2 Ins. 66; and after the statute 1 Edw. 3 ch. 12, though the forfeiture did not attach, yet a
reasonable fine was to be paid to the king upon the alienation. 2 Ins. 67. Staundf. Prer. 27. 2 Bl. Com. 72.
It was not until ten years after the first charter, (12 Ch. 2 ch. 24,) that all fines for alienations and tenures of the
king in capite were abolished. 2 Bl. Com. 77. So that
the object of this clause was manifestly to give the royal assent to
alienations without the claim of any fine therefor.
We are therefore satisfied, that by
virtue of the charter and the intermediate grants, lord Fairfax at the time of
his death, had the absolute property of the soil of the land in controversy,
and the acts of ownership exercised by him over the whole waste and
unappropriated lands, as stated in the case, vested in him a complete seizin and possession thereof. Even if there had been no
acts of ownership proved, we should have been of opinion, that as there was no
adverse possession, and the land was waste and unappropriated, the legal seizin must be, upon principle, considered as passing with
the title.
On this point we have the satisfaction
to find, that our view of the title of lord Fairfax seems incidentally
confirmed by the opinion of the Court of appeals of Virginia, in Picket v. Dowdell, 2 Wash. 106. Johnson v. Buffington, 2 Wash. 116,
and Curry v. Burns, 2 Wash. 121.
The next question is as to the nature
and character of the title which Denny Fairfax took by the will of lord Fairfax,
he being, at the time of the death of lord Fairfax, an alien enemy.
It is clear by the common law, that an
alien can take lands by purchase, though not by descent; or in other words he
cannot take by the act of law, but he may by the act of the party. This
principle has been settled in the year books, and has been uniformly recognized
as sound law from that time. 11 Hen. 4, 26. 14, Hen. 4, 26. Co. Litt. 2 b. Nor is there any distinction, whether the
purchase be by grant or by devise. In either case, the estate vests in the
alien. Pow. Dev. 316, &c. Park. [11 U.S. 603, 620] Rep. 144. Co. Litt. 2 b.
not for his own benefit, but for the benefit of the state; or in the language
of the ancient law, the alien has the capacity to take, but not to hold lands,
and they may be seized into the hands of the sovereign. 11 H. 4, 26. 14 H. 4,
20. But until the lands are so seized, the alien has complete dominion over the
same. He is a good tenant of the freehold in a precipe
on a common recovery. 4 Leon 84. Goldsb. 102. 10 Mod.
128. And may convey the same to a purchaser. Sheafe
v. O'Neile, 1 Mass. Rep. 256. Though Co. Litt. 52 b, seems to the contrary, yet it must probably
mean that he can convey a defeasible estate only, which an office found will
divest. It seems indeed to have been held, that an alien cannot maintain a real
action for the recovery of lands. Co. Lit. 129 b. Thel.
Dig. ch. 6. Dyer, 2. b. but it does not then follow
that he may not defend, in a real action, his title to the lands against all
persons but the sovereign.
We do not find that in respect to
these general rights and disabilities, there is any admitted difference between
alien friends and alien enemies. During the war, the property of alien enemies
is subject to confiscation jure belli, and their civil capacity to sue is
suspended. Dyer, 2 b. Brandon v. Nesbitt, 6 T. R. 23. 3 Bos.
& Pull. 113. 5 Rob. 102. But as to capacity to purchase, no case has been
cited in which it has been denied, and in The Attorney General v. Wheeden & Shales, Park. Rep. 267, it was adjudged that
a bequest to an alien enemy was good, and after a peace might be enforced. Indeed the common law in these particulars seems to coincide
with the Jus Gentium. Bynk.
Quest. Pub. Jur. ch. 7. Vattel, tel, b. 2, ch. 8, 112, 114. Grot. lib. 2, ch.
6, 16.
It has not been attempted to place the
title of Denny Fairfax upon the ground of his being an antenatus,
born under a common allegiance before the American revolution, and this has
been abandoned upon good reason; for whatever doubts may have been formerly
entertained, it is now settled that a British subject born before, cannot,
since the revolution, take lands by descent in the United States. 4 Cranch, 321, Dawson's Lessee v. Godfrey.
But it has been argued, that although
D. Fairfax [11 U.S. 603, 621] had capacity
to take the lands as devisee, yet he took to the use of the commonwealth only,
and had therefore but a momentary seizin; that in
fact he was but a mere trustee of the estate at the will of the commonwealth,
and that by operation of law, immediately upon the death of the testator, lord
Fairfax, the title vested in the commonwealth, and left but a mere naked
possession in the devisee.
If we are right in the position, that
the capacity of an alien enemy does not differ in this respect from an alien
friend, it will not be easy to maintain this argument. It is incontrovertibly
settled upon the fullest authority, that the title acquired by an alien by
purchase, is not divested until office found. The principle is founded upon the
ground, that as the freehold is in the alien, and he is tenant to the lord of
whom the lands are holden, it cannot be divested out
of him but by some notorious act, by which it may appear that the freehold is
in another. 1 Bac. Abr. Alien C. p. 133. Now an office of entitling is
necessary to give this notoriety, and fix the title in the sovereign. So it was
adjudged in Page's case, 5 Co. 22, and has been uniformly recognized. Park.
Rep. 267. Park. 144. Hob. 231. Bro. Denizen, pl. 17. Co. Litt.
2. b. And the reason of the difference, why, when an alien dies,
the sovereign is seized without office found, is because otherwise the freehold
would be in abeyance, as an alien cannot have any inheritable blood. Nay even
after office found, the king is not adjudged in possession, unless the
possession were then vacant; for if the possession were then in another, the
king must enter or seize by his officer, before the possession in deed shall be
adjudged in him. 14 H. 7, 21. 15 H. 7, 6, 20. Staundf.
Prerog. Reg. ch. 18, p. 54.
4 Co. 58. a. And if we were to yield to the authority of Staundford,
(Prer. Reg. ch. 18, p. 56,)
that in the case of alien enemy, the king 'ratione guerrae,' might seize without office found, yet the same
learned authority assures us, 'that the king must seize in those cases, ere he
can have an interest in the lands, because they be penal towards the party.' 4
Co. 58. b. And until the king be in possession by office found, he cannot grant
lands which are forfeited by alienage. Staundf. Pre.
Reg. ch. 18. f. 54. Stat. 18 Hen. 6, ch. 6. [11 U.S. 603, 622] To apply these principles to the present case,
Denny Fairfax had a complete, though defeasible title, by virtue of the devise,
and as the possession was either vacant or not adverse, of course the law
united a seizin to his title in the lands in
controversy; and this title could only be divested by an inquest of office,
perfected by an entry and seizure where the possession was not vacant. And no
grant by the commonwealth, according to the common law, could be valid, until
the title was, by such means, fixed in the commonwealth. It is admitted that no
entry or seizure was made by the commonwealth 'ratione
guerrae' during the war. It is also admitted, that no
inquest of office was ever made pursuant to the acts on this subject at any
time. And it would seem therefore to follow, upon common law reasoning, that
the grant to the lessor of the original Plaintiff, by the public patent of 30th
April, 1789, issued improvidently and erroneously, and passed nothing. And if
this be true, and there be no act of Virginia altering the common law, it is
quite immaterial what is the validity of the title of the original Defendant as
against the commonwealth; for the Plaintiff must recover by the strength of his
own title, and not by the weakness of that of his adversary.
But it is contended, 1st, That the
common law as to inquests of office and seizure, so far as the same respects
the lands in controversy, is completely dispensed with by statutes of the
commonwealth, so as to make the grant to the original Plaintiff in 1789
complete and perfect-And secondly, and further, if it be not so, yet as the
devisee died pending the suit, the freehold was thereby cast upon the
commonwealth without an inquest, and thus arises a retroactive confirmation of
the title of the original Plaintiff, of which he may now avail himself.-As to
the first point we will not say that it was not competent for the legislature,
( supposing no treaty in the way) by a special act to have vested the land in
the commonwealth without an inquest of office for the cause of alienage. But
such an effect ought not, upon principles of public policy, to be presumed upon
light grounds; that an inquest of office should be made in cases of alienage,
is a useful and important restraint upon public proceedings. No part of the
United States seems to have been more aware of its importance, or [11 U.S.
603, 623] more cautious to guard against its
abolition, than the Courts of Virginia. It prevents individuals from being
harassed by numerous suits introduced by litigious grantees. It enables the
owner to contest the question of alienage directly by a traverse of the office.
It affords an opportunity for the public to know the nature, the value, and the
extent of its acquisitions pro defectu haeredis; and above all it operates as a salutary
suppression of that corrupt influence which the avarice of speculation might
otherwise urge upon the legislature. The common law, therefore, ought not to be
deemed to be repealed, unless the language of a statute be clear and explicit
for this purpose.
Let us now consider the several acts
which have been referred to in the argument, from which we think it will
abundantly appear that, during the war, the lands in controversy were never, by
any public law, vested in the commonwealth. We dismiss, at once, the act of
1777, ch. 9, and of 1779, ch.
14, as they are restrained to estates held by British subjects at the times of
their respective enactments, and do not extend to estates subsequently
acquired.
The next act is that of 1782, ch. 8, the 24th sec. after reciting that 'since the death
of the late proprietor of the Northern Neck, there is reason to suppose that
the said proprietorship hath descended upon alien enemies,' enacts, that persons
holding lands in said Neck, shall retain sequestered in their hands, all quit
rents which were then due, until the right of descent should be more fully
ascertained; and that all quit rents, thereafter to become due, shall be paid
into the public treasury, and the parties exonerated from the future claim of
the proprietor. Admitting that this section, as to the quit rents, was
equivalent to an inquest of office; it cannot be extended, by construction, to
include the waste lands of the proprietor. Neither the words, nor the
intention, of the legislature would authorize such a construction-But it may
well be doubted if, even as to the quit rents, the provision is not to be
considered as a sequestration jure belli, rather than
a seizure for alienage-for it proceeds on the ground, that the property 'had
descended, not upon aliens, but alien enemies. So far as the treaty of peace
might be deemed material in the case, this distinction would deserve
consideration.' [11 U.S. 603, 624] The next is
the act of 1782, ch. 33, which, after reciting that
'the death of lord Fairfax may occasion great inconvenience to those who may
incline to make entries for vacant lands in the Northern Neck, proceeds ( sec.
3.) to enact, that all entries made with the surveyors, &c. and returned to
the office formerly kept by lord Fairfax, shall be held as good and valid as
those heretofore made under his direction, 'until some mode shall be taken up
and adopted by the General Assembly, concerning the territory of the Northern
Neck.' This act, so far from containing in itself any provision for vesting all
the vacant lands of lord Fairfax in the commonwealth, expressly reserves, to a
future time, all decisions as to the disposal of the territory.-It
suffers rights and titles to be acquired exactly in the same manner, and with
the same conditions, which lord Fairfax had by permanent regulations prescribed
in his office.-No other acts were passed on the subject during the war.
We are now led to consider the act of
1785, ch. 47-which has presented some difficulty, if
it stand unaffected by the treaty of peace. The 4th
sec. after a recital 'that since the death of the late proprietor, no mode hath
been adopted to enable those who had before his death made entries within the
said district according to an act, &c. (act 1782, ch.
33) to obtain titles to the same,' enacts that in all cases of such entries,
grants shall be issued by the commonwealth to the parties in the same manner,
as by law is directed in cases of other unappropriated lands- The 5th sec. then
declares that the unappropriated lands within the Northern Neck should be
subject to the same regulations, and be granted in the same manner, and caveats
should be proceeded upon, tried and determined, as is by law directed, in cases
of other unappropriated lands belonging to the commonwealth. The 6th sec.
extinguishes for the future all quit rents.
The patent of the original Plaintiff
issued pursuant to the 5th sec. of this act.
It has been argued, that the act of
1785 amounts to a legislative appropriation of all the lands in controversy.
That it must be considered as completely divesting the title of Denny Fairfax
for the cause of alienage, and [11 U.S. 603, 625] vesting it in the commonwealth-After the most
mature reflection, we cannot subscribe to the argument-In acts of sovereignty
so highly penal, it is against the ordinary rule to enlarge, by implication and
inference, the extent of the language employed. It would be to declare purposes
which the legislature have not chosen to avow, and to
create vested estates, when the common law would pronounce a contrary sentence,
and the guardians of the public interests have not expressed an intention to
abrogate that law. If the legislature have proceeded
upon the supposition that the lands were already vested in the commonwealth, we
do not perceive how it helps the case. If the legislature, upon a mistake of
facts, proceed to grant defective titles, we know of no rule of law which
requires a Court to declare, in penal cases, that to be actually done which
ought previously to have been done. Perhaps as to grants under the 4th sec.
where entries under the act of 1782, ch. 33, it might
not be too much to hold, that such grants conveyed no more than the title of
the commonwealth, exactly in the same state as the commonwealth itself held it,
viz. an inchoate right, to be reduced into possession and consummated by a suit
in the nature, or with the effect, of an inquest of office. But we give no
opinion on this point, because the patent of the original Plaintiff manifestly
issued under the succeeding section-and upon a construction, which we give to
this section, it issued improvidently and passed no title whatever.-That
construction is, that the unappropriated lands in the Northern Neck should be
granted in the same manner as the other lands of the commonwealth, when the
title of the commonwealth was perfected by possession. It seems to us difficult
to contend, that the legislature meant to grant mere titles and rights of
entry, of the commonwealth, to lands in the same manner as it did lands of
which the commonwealth was in actual possession and seizin.- It would be selling
suits and controversies through the whole country, and enacting a general
statute in favor of maintenance, an offence which the common law has denounced
with extraordinary severity. Consistent therefore with the manifest intention
of the legislature, grants were to issue for lands in the Northern Neck,
precisely in the same manner as for lands in other parts of the state, and
under the same [11 U.S. 603, 626] limitation,
viz. that the commonwealth should have, at the time of the grant, a complete
title and seizin.
We are the more confirmed in this
construction by the act concerning eschestors, (act
1779, ch. 45,) which regulates the manner of
proceeding in cases of escheat, and was by a subsequent act, (act 1785, ch. 53,) expressly extended to the counties in the Northern
Neck. This act of 1779 expressly prohibits the granting of any lands, seized
into the hands of the commonwealth upon office found, till the lapse of twelve
months after the return of the inquisition and verdict into the office of the
general Court, and afterwards authorizes the proper escheator
to proceed to sell in case no claim should be filed, within that time, and substantiated
against the commonwealth. It is apparent, from this act, that it was not the
intention of the legislature to dispose of lands, accruing by escheat, in the
same manner as lands to which the commonwealth already possessed a perfect
title. It has not been denied that the regulations of this act were designed to
apply as well to titles accruing upon alienage, (which are not in strictness,
escheats,) as upon forfeitures for other causes; and, but for the act of 1785, ch. 47, we do not perceive but that the vacant lands were,
by the devise of lord Fairfax, in the Northern Neck, would have been completely
within the act regulating proceedings upon escheats.
The real fact appears to have been,
that the legislature supposed that the commonwealth were
in actual seizin and possession of the vacant lands
of lord Fairfax, either upon the principle that an alien enemy could not take
by devise, or the belief that the acts of 1782, ch.
8, and ch. 33, had already vested the property in the
commonwealth. In either case it was a mistake which surely ought not to be
pressed to the injury of third persons.
But if the construction, which we have
suggested, be incorrect, we think that, at all events, the title of Hunter,
under the grant of 1789, cannot be considered as more extensive than the title
of the commonwealth, viz. a title inchoate and imperfect; to be consummated by
an actual entry under an inquest of office, or its equivalent, a suit and
judgment at law by the grantee. [11 U.S. 603, 627] This view of the acts of Virginia, renders it
wholly unnecessary to consider a point, which has been very elaborately argued
at the bar, whether the treaty of peace, which declares 'that no future
confiscations shall be made,' protects from forfeiture, under the municipal laws
respecting alienage, estates held by British subjects at the time of the
ratification of that treaty.-For we are well satisfied that the treaty of 1794
completely protects and confirms the title of Denny Fairfax, even admitting
that the treaty of peace left him wholly unprovided
for.
The 9th article is in these words: 'It
is agreed that British subjects who now hold lands in the territories of the
United States, and American citizens who now hold lands in the dominions of his
majesty, shall continue to hold them according to the nature and tenure of
their respective estates and titles therein; and may grant, sell or devise the
same to whom they please in like manner as if they were natives, and that
neither they nor their heirs or assigns shall, so far as respects the said
lands and the legal remedies incident thereto, be considered as aliens.'
Now, we cannot yield to the argument
that Denny Fairfax had no title, but a mere naked possession or trust estate.
In our judgment, by virtue of the devise to him, he held a fee simple in his
own right. At the time of the commencement of this suit (in 1791) he was in
complete possession and seizin of the land. That
possession and seizin continued up to and after the
treaty of 1794, which being the supreme law of the land, confirmed the title to
him, his heirs and assigns, and protected him from any forfeiture by reason of
alienage.
It was once in the power of the
commonwealth of Virginia, by an inquest of office or its equivalent, to have
vested the estate completely in itself or its grantee. But it has not so done,
and its own inchoate title (and of course the derivative title, if any, of its
grantee) has by the operation of the treaty become ineffectual and void.
It becomes unnecessary to consider the
argument as to the effect of the death of Denny Fairfax pending the [11 U.S.
603, 628] suit, because admitting it to be
correctly applied in general, the treaty of 1794 completely avoids it. The
heirs of Denny Fairfax were made capable in law to take from him by descent,
and the freehold was not, therefore, on his death, cast upon the commonwealth.
On the whole, the Court are of opinion
that the judgment of the Court of appeals of Virginia ought to be reversed, and
that the judgment of the District Court of Winchester be affirmed with costs,
&c.
JOHNSON, J.
After the maturest
investigation of this case that circumstances would permit me to make, I am
obliged to dissent from the opinion of the majority of my brethren.